Do we need a specific offence of domestic violence?
Many welcomed the recent suggestion from the Prime Minister that the government will examine whether we need a specific offence of domestic violence. As Labour also recently promised to introduce new laws tackling domestic violence, the question increasingly becoming a key one that all political parties will need to address as we move closer to the next election. Do we need a specific offence to tackle domestic violence and abuse, and if so, what would this look like?
The Home Office now has a cross-government definition for domestic violence and abuse, which includes:
“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:
This definition rightly identifies that physical violence is not the only form in which domestic violence and abuse can take. Coercion, control, emotional and psychological abuse form a continuing pattern of behaviour. Controlling behaviour is focused on prevention, rather than on a perpetrator ‘doing’ something. A perpetrator prevents a victim from having communication with their friends or family. A perpetrator will deprive a victim of money and access to transportation. Victims are deprived of the means needed for independence, resistance or escape, which people so often fail to understand in their perception of what forms domestic violence. A coercive perpetrator will intimidate, humiliate and degrade their victim. Although there may not be a physical sign of harm, such as a broken jaw or burns, it is the frequency and routine of coercive and controlling behaviour, rather than the severity, that accumulates and impacts victims’ lives so destructively.
Research shows that over 30 per cent of women and 18 per cent of men have experienced domestic abuse since the age of 16. This amounts to five million women and 2.9 million men (close to the whole population of London alone). Female victims experience more severe violence and control, with more serious psychological consequences, than male victims; and women are much more likely to be fearful of their partners. It is also naïve to think that abuse ends when a victim has left the relationship. Women’s Aid found that 76 per cent of women who suffered post-separation violence were subjected to continued verbal and emotional abuse.
A common argument against the introduction of a specific offence is that a sufficient range of offences already exists to deal with domestic violence. For physical violence, for example, there are the offences of assault, actual and grievous bodily harm, manslaughter, rape and murder. In addition, there are offences that cover non-physical abuse – such as harassment, stalking and threatening behaviour.
However, these offences are selective. None of these them identify all forms of psychological and emotional abuse – or the coercive or controlling behaviour that is truly at the heart of domestic violence. Nor do they recognise the long-term nature of this abuse. Almost every incident of domestic violence or homicide flags up years of coercive and controlling behaviour leading up to it. Without a specific offence that covers this form of abuse, the criminal justice system is failing to protect victims by waiting until a violent incident occurs to punish those responsible.
A domestic violence offence would clearly need to be one that captures a pattern of behaviour, taking a ‘course of conduct’ approach. Our criminal justice system is traditionally not designed to allow this – instead focusing on criminal offences as single incidents. This has, however, been overcome for the offence of stalking, where a specific definition is absent, but the elements of the offence are that ‘a course of conduct’ exists which ‘amounts to stalking’. This is supported by a non-exhaustive list of behaviours such as following, contacting and monitoring.
Emotional and psychological abuse is extremely difficult to understand. It is not a clear cut ‘A hit B’ scenario. So, understandably, the police and criminal justice system have shied away from trying to define and tackle it. But a survey published this week found that 98 per cent of victims of domestic violence agree that a reform of the law is needed, and 96 per cent believe that the criminal justice system should take the impact of psychological abuse into consideration. The introduction of a new offence must be combined with the commitment to increased awareness and education, long-term support of victims’ services, and a focus on changing offender behaviour through sentencing, such as perpetrator programme participation.
But it is no longer acceptable for a lack of understanding of emotional and psychological abuse to deter Parliament, the police and the justice system from trying to tackle this complex and difficult issue that destroys the lives of so many victims. A new offence would require extensive consultation, legal expertise and a continued commitment to tackle it (so we do not repeat the mistakes with the offence of female genital mutilation – for which a complete lack of dedication to actually tackling the crime led to nearly 30 years without a single prosecution). None the less, if we can find a way to introduce an offence that finally recognises the pattern of control and coercion that underpins domestic violence, we can begin to tackle domestic abuse as the crime it deserves to be recognised as.